Poland’s government has proposed new legislation to further undo its previous judicial reforms in the hope of unlocking billions of euros of EU funds that the European Commission has frozen over rule-of-law concerns.
Late last night, the bill was submitted to parliament by MPs from the ruling Law and Justice (PiS) party. Unofficial reports in leading Polish media outlets indicate that Brussels has agreed to unblock Poland’s funds if the measures are passed.
“[This legislation] fulfils the key milestones indicated by the European Commission,” said Poland’s minister for European affairs, Szymon Szynkowski vel Sęk, yesterday evening at a press conference in parliament alongside government spokesman Piotr Müller and PiS spokesman Rafał Bochenek.
However, leading legal scholars – including Laurent Pech, a professor of law at University College Dublin – have argued that the proposals now presented by the Polish government do not comply with the EU’s own previously stated requirements to restore the rule of law in Poland.
A joke. PiS fake test does *not* comply either with EU or ECHR requirements relating to "established by law" criterion.
Do however read this helpful thread by @J_Jaraczewski on latest judicial milestones farce apparently concocted with @vonderleyen Comm who should know better https://t.co/YEAWPQYYbT
— Laurent Pech 🇺🇦 (@ProfPech) December 14, 2022
The central aspect of the proposed legislation is to take responsibility for disciplinary proceedings against judges away from the Supreme Court and to give it instead to the Supreme Administrative Court (NSA).
That would undo a reform introduced only five months ago, when the government established a new chamber in the Supreme Court to deal with judicial discipline. That move was in itself intended to satisfy the EU’s demands, but the European Commission later indicated that it was insufficient.
Two rule-of-law experts – Jakub Jaraczewski of Democracy Reporting International and Patryk Wachowiec of the Civic Development Forum (FOR) – note that giving the NSA authority over discipline is still problematic because a quarter of its judges were appointed after the government overhauled the National Council of the Judiciary (KRS).
A number of Polish and European court rulings – including from the NSA itself – have found that the changes made to the KRS – which is responsible for nominating judges – have rendered it illegitimate.
Poland’s constitutional court cannot adjudicate lawfully because it contains improperly appointed judges who “infect it with unlawfulness”, the country’s top administrative court has found in the latest ruling against the government’s judicial policies https://t.co/kN1h0BQGcB
— Notes from Poland 🇵🇱 (@notesfrompoland) December 6, 2022
However, PiS spokesman Bochenek noted yesterday that the NSA itself “has not been questioned by anyone so far, its staffing and functioning have not been questioned”, reports news service wPolityce.
Szynkowski vel Sęk added that, at a meeting yesterday, European Commissioners “accepted the negotiated assumptions” in the new bill. “If they are adopted by the Polish parliament, they will…meet the conditions for obtaining funds.”
“We have preliminary assurances from the justice commissioner [Didier Reynders] that the adoption of these solutions in the form in which they were submitted to parliament will start the process of opening [blocked funds] for Poland,” said Bochenek.
The government has a majority in the lower house of parliament, the Sejm, which has the power to push through legislation even if it is opposed by the weaker upper-house Senate, which the opposition controls.
But there remains uncertainty over whether the entire ruling coalition will support the bill, given that a hardline junior member party, United Poland (Solidarna Polska), has rejected the idea of further compromise with Brussels.
That could leave the government needing opposition votes, and Müller said yesterday that they “hope the bill will be supported by all political forces in the Sejm”.
The PiS speaker of parliament, Elżbieta Witek, today called a meeting of the heads of all parliamentary caucuses which the prime minister, Mateusz Morawiecki, is also attending.
“This is an important, urgent law,” said Bochenek. “We want to process [it] as quickly as possible, so that we can start submitting an application for the payment of funds.”
Earlier this week, Morawiecki said in an interview that there is currently “chaos and difficulties in the judiciary”. The comment was interpreted as criticism of United Poland leader Zbigniew Ziobro, who, in his capacity as justice minister, has overseen the government’s judicial reforms.
Ziobro himself criticised Morawiecki last week for the compromises he has made to obtain EU funds, which Ziobro believes undermine Poland’s sovereignty and show that “the eurocrats” are able to “blackmail” Poland.
Main image credit: Adam Guz/KPRM (under CC BY-NC-ND 3.0 PL)
Daniel Tilles is editor-in-chief of Notes from Poland. He has written on Polish affairs for a wide range of publications, including Foreign Policy, POLITICO Europe, EUobserver and Dziennik Gazeta Prawna.
